When I first watched White House “border czar” Tom Homan’s rant about how immigration agents can indiscriminately detain people based on physical appearance, I was aghast. Not because it was happening — as a former public defender, I’m well aware of how the Supreme Court has allowed law enforcement to target marginalized communities with surgical precision.
My shock stemmed from Homan’s saying the quiet part out loud. The framers, who crafted the Fourth Amendment to shield us from arbitrary government power, would be equally appalled.
The framers, who crafted the Fourth Amendment to shield us from arbitrary government power, would be equally appalled.
Starting in the 1960s, the Supreme Court began to feel differently. Although the court has gutted the Fourth Amendment — authorizing police to stop nearly anyone, at any time, for any reason — minimal restrictions remain. These limitations unequivocally prohibit the brazen efforts advocated by Homan to target people — not because they were believed to have engaged in criminal activity but because of their race, ethnicity or national origin.
During the social turmoil of the late 20th century, the court faced undeserved backlash for pro-defendant rulings. The court’s response was the case Terry v. Ohio (1968), which created a lower standard of “reasonable suspicion” for brief investigatory stops and frisks. The Terry decision afforded police significant deference, weakening centuries-old protections against unreasonable searches and seizures and marking a steep departure from the Fourth Amendment’s original understanding. This opened the floodgates to abuses of authority.
Nearly three decades later, the court doubled down with its unanimous decision in Whren v. United States (1996). This ruling gave police the power to make traffic stops based on dubious rationales like a busted taillight or a cracked windshield. These pretextual stops become commonplace, inevitably fueling allegations of racial profiling — or as it’s often called, “driving while black.” The Whren decision has been widely criticized for enabling discriminatory policing, authorizing officers to go on fishing expeditions, particularly against minority drivers.
These decisions have allowed law enforcement to prey upon members of minority communities. Whren and Terry stops are routinely used to do precisely what Homan admitted. It’s just that law enforcement typically isn’t as blunt about it.
Take the case of Floridian Earl Sampson. Over a five-year period, despite having never broken the law, Sampson — a Black man whose only criminal conviction was for marijuana possession — was stopped 258 times by Miami Gardens Police outside the convenience store where he worked.
Though reasonable suspicion is a demonstrably low standard, simply appearing to be of Latin American ancestry isn’t sufficient. But even this greatly diminished threshold is too much for Homan and the Trump administration’s mass deportation squads — who profess the authority to go up to any brown people outside a Home Depot and demand to see their papers.
While the Supreme Court has already dramatically curtailed Fourth Amendment rights, what protections remain are particularly blurred within the expansive 100-mile border zone. But even there, some meaningful restrictions remain — at least in theory.
In 1975, the justices held that the Fourth Amendment doesn’t allow roving Border Patrol agents to stop and question people about their citizenship and immigration status when the only ground for suspicion is that they appear to be of Mexican ancestry.
What happens if you’re the victim of an unconstitutional search or seizure by federal agents? Suing federal agents successfully is highly unlikely.
Unfortunately, a year later, the court ruled that fixed checkpoints within the 100-mile zone are constitutional even without individualized suspicion. This zone, which encompasses roughly two-thirds of our nation’s population — many far from any commonly understood “border” — sees significantly diminished Fourth Amendment rights. The reduced Fourth Amendment protections in this zone raise serious concerns about governmental power and individual liberties.
Unfortunately, even the court’s steadfast reluctance to “police the police” hasn’t been enough for some.
Blatantly unconstitutional immigration enforcement practices have become so rampant that federal judges, like Maame Ewusi-Mensah Frimpong in the Central District of California, have had to swiftly intervene. Some on the right have claimed that Frimpong’s temporary restraining order is unlawful and ties the hands of immigration agents. In reality, this TRO does nothing more than insist that agents act in accordance with the Constitution. Stated differently, the order simply mandates that agents do what the law already requires of them. Courts can — and must — put a stop to these pervasive attempts to eviscerate our constitutional rights. But what happens if you’re the victim of an unconstitutional search or seizure by federal agents? Suing federal agents successfully is highly unlikely. Though a statute commonly known as Section 1983 provides a cause of action to sue state actors in federal court for constitutional violations, there’s no equivalent for federal agents. In 1971, the Supreme Court decided the case of Bivens v. Six Unknown Named Agents, creating an implied cause of action to sue federal actors for constitutional violations. Yet, in the half-century since the standard’s inception, the court has so withered the Bivens doctrine that unless your name is Webster Bivens and you’re suing six unknown federal agents for violating your Fourth Amendment rights, you’re probably out of luck. The court has expressed reluctance to expand Bivens to new contexts, like immigration enforcement. Specifically, the justices have twice declined to apply the Bivens doctrine to Border Patrol agents, preposterously suggesting that national security concerns necessitate the ability of agents to use excessive force without remediation. Some justices have even advocated for eliminating the Bivens doctrine entirely. Even if you somehow succeed, there’s a good chance the agents will be granted qualified immunity, leaving you without redress. Recent efforts on Capitol Hill to codify Bivens into law are a welcome move, but they are likely to face an uphill battle. Even if they are successful, however, this is only part of the solution. Congress or the court must disavow the powerful law enforcement lobby and revisit the judicially concocted doctrines that have allowed law enforcement to skirt liability. The practices the court has sanctioned stand in stark contrast to the original understanding of the Fourth Amendment. Nevertheless, the tactics espoused by Homan are far beyond the pale of what’s permissible under the current Fourth Amendment doctrine. In fact, Homan’s vision embodies the very abuses the framers went to great lengths to prevent. The framers would undoubtedly be appalled by Homan’s approach and dismayed to see self-proclaimed “originalists” embrace such flagrantly unconstitutional conduct in their name.
Mike Fox
Mike Fox is a legal fellow with the Cato Institute’s Project on Criminal Justice. 
